Citation Nr: 1141913
Decision Date: 11/10/11 Archive Date: 11/21/11
DOCKET NO. 10-04 985 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Entitlement to a higher initial rating for multiple sclerosis, evaluated as 30 percent disabling from October 31, 2005.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
REMAND
The appellant served in a reserve component, including active duty for training from January to March 1995.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA).
When the RO granted service connection, it determined that the appellant had had "active service" until October 1996; however, it does not appear in the claims file available to the Board that there was a period of active duty, active duty for training, or inactive duty training ending in October 1996 that qualifies as "active military service" as defined by 38 U.S.C.A. § 101(24) (West 2002). (Apparently, the RO granted service connection based on a presumption of service incurrence for multiple sclerosis because it found that the appellant had had manifestations to a compensable degree within 7 years of October 1996. See 38 C.F.R. §§ 3.307, 3.309 (2011).) On remand, the agency of original jurisdiction (AOJ) should seek verification of the appellant's service, including any periods of active duty, active duty for training, and inactive duty training.
The appellant appeared for a Board hearing in June 2011. She noted that she had been seeking care from Ohio State University Medical Center (OSU) on a regular basis for her multiple sclerosis, including as often as every 6 months for evaluation by a neurologist. She also said that problems due to multiple sclerosis, including headaches, leg weakness, balance problems, difficulty moving an extremity and fatigue had worsened. In this regard, she reported that as recently as May 2011 she was seen at OSU and required a change in her medication, including a daily injection.
Because of the appellant's testimony regarding what appear to be worsening symptoms, the Board finds that another examination is required. Accordingly, the case is REMANDED for the following action:
1. The AOJ should contact the appellant regarding her military service and obtain sufficient information about her assignments to verify her dates of service, specifically any period of active duty, active duty for training, and inactive duty training. The service department/reserve unit should be asked to verify these dates.
2. With proper authorization from the appellant, the AOJ should contact the OSU facility(ies) where the appellant has obtained treatment for her multiple sclerosis. All records pertinent to such treatment should be obtained and included in the claims file.
3. After completion of the above-requested development, the AOJ should schedule the appellant for an examination with a neurologist so that the current level of disability due to multiple sclerosis can be ascertained. The examiner should review the claims file, examine the appellant, and provide detailed information regarding the disabling effects of each symptom due to multiple sclerosis. For example, it should be noted whether she experiences headaches, motor or sensory deficits, speech disturbance, vision impairment, gait disturbance, tremors, or visceral manifestations, etc. All disabling manifestations of each should be described in detail, such as noting whether a neurologic lesion has caused mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerve. For each subjective symptom, the examiner should indicate whether there is any cause other than multiple sclerosis as an explanation for it.
4. The AOJ should ensure that the examination report prepared in response to paragraph 3 above fully complies with this remand request. It should be returned to the examiner for any corrective action deemed necessary.
5. Any additional development deemed appropriate should be undertaken by the AOJ. Thereafter, the claim for a higher initial rating should be re-adjudicated. (Separate ratings for separately disabling manifestations should be assigned, if determined to be appropriate in accordance with 38 C.F.R. § 4.124a (2011).) If the benefit sought is not granted, a supplemental statement of the case should be issued. The appellant should be given opportunity to respond before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).